Agnes Hilonga and Another vs Sanka Nade (As Administrator of the estate of Nawe Nade) (Civil Application No. 681/02 of 2024) [2024] TZCA 913 (19 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 681/02 OF 2024 AGNESS HILONGA ........................................................... lST APPLICANT PETRO BASSO ............................ . ............ . ......................... 2 nd APPLICANT VERSUS SANKA NAWE NADE (As Administrator of the estate of NAWE NADE) ................... . ........... . ........................ RESPONDENT (Application for stay of execution of the Decree/Order of the High Court of Tanzania, Land Division at Arusha) (Kamuzora*_J.) dated the 27th day of June, 2024 in Land Appeal No. 59 of 2023 RULING 19th September, 2024 MURUKE, J.A: By notice of motion, the applicants are moving the Court for an order of stay of execution of the decree of the High Court, Land Appeal No. 59 of 2023 Manyara Sub-Registry at Babati pending final determination of Civil Appeal No. 605 of 2024. The application is of notice of motion, predicated on the following grounds: (j) The respondent has filed Misc. Application No. 112/2023 for execution with a misleading affidavit the applicants refused service while it is false.

(ii) The applicants have filed appeal against the Judgment and Decree in Land Appeal No. 59 o f 2023 with the Court o f Appeal. (Hi) The appeal filed has overwhelming chances o f success. The application is supported by an joint affidavit duly sworn by the two applicants Agness Hilonga and Petro Basso. Having being sen/ed with the application, the respondent filed an affidavit in reply to oppose it. The respondent totally denied the allegations that the applicants will suffer irreparable loss, to the contrary it is the respondent who is suffering having won the case two times but he has not been given back the land in dispute. At the hearing of the application, Messers John J. Lundu and Geofrey Alex Mollel, both learned advocates appeared for applicants and respondent, respectively. In arguing the application, Mr. Lundu begun by adopting the notice of motion and affidavit in support of the application for stay of execution. While pressing for the grant of stay order, Mr. Lundu insisted that, the applicants have fulfilled the mandatory requirements specified under Rule 11 (7) of the Rules, pointing out that the applicants have attached copy of notice of appeal, Annexure AP-3, Copy of Judgment and Decree Annexture AP-2, Notice to show cause why execution should not proceed

Annexture AP-4, and record and Memorandum of Appeal annexture AP- 5. Mr. Lundu further submitted that, the applicants have also complied with the two conditions stipulated under Rule 11 (5) of the Rules that the applicants deponed at paragraph 9 of affidavit that they would suffer substantial loss if the order of stay is not granted because they have invested by developing the area. The mode of execution is for vacant possession and demolition of the house built by the applicants. It will be very difficult to revant back to original positions once the applicants win the appeal as there are overwhelming chances of success, insisted Mr. Lundu. On furnishing security for due performance of the decree, Mr. Lundu submitted that, the applicants have undertaken in paragraph 10 of their affidavit to furnish as will be ordered by the Court. On these submission, Mr. Lundu urged the Court to grant the application for stay of execution. Mr. Mollel vigorously opposed the application by arguing that the applicants have failed to convince the Court on substantial loss and provision of security for due performance of the decree for it to grant the order sought by the applicants. 3

Elaborating more, Mr. Molle! attacked the applicant's counsel submission on overwhelming chance to succeed on the appeal by the applicants, that whether the appeal will succeed or not is not an issue now at the stage of stay. Assurance of succeeding appeal at this stage is premature argued. The respondent's counsel while winding his submission argued that, the applicants have not proved substantial loss neither here they taken firm undertaking on provision of security for due performance of decree, however, if the Court sees that there is justification to grant the order for stay, then should order status quo to be maintained as ordered by District Land and Housing Tribunal for Manyara at Babati in Execution No. 112 of 2023 decision, attached to replying affidavit Mr. Lundu briefly rejoined that the applicants would suffer loss if the 3 acre farm and the house is fold to satisfy' the decree. For the security for due performance, he submitted that the applicants are ready to deposit any amount as shall be ordered by the Court. Regarding issue of being certain to win the appeal, Mr. Lundu submitted that, he did not say the applicant will win the appeal, but there are overwhelming chance of winning. He thus, reiterated his prayer that the application be granted. 4

Having heard both parties' submissions, gone through Notice of Motion and affidavit for and against, issue for consideration is whether the applicants have satisfied the conditions for grant of an order for stay of execution. It is settled law that the applicants are enjoyed to comply with all the conditions set out under Rule 11 (4) (5) (a) - (b) and 7 (a) - (d) of the Rules. The Court would decline to grant the application for stay of execution where an applicant fails to cumulative meet all the conditions. The position was insisted in the case of National Housing Corporation v. A. C. Gomes [1997] Ltd Civil Application No. 133 of 2009, Hai District Council & Another v. Kilempu Kinoka Laizer & 15 Others, Civil Application No. 10/05 of 2017 (all unreported) just to mention few. From the records there is no dispute that the applicants have fully satisfied the requirements of sub rule 4 to Rule 11 of the Rules. The application was filed on 03rd September, 2024 within the prescribed period of 14 days from 26/08/2024 when given notice of intended execution Annexture AP-4. Thus the applicants have satisfied conditions set under Rules 11 (4) of the Rules. 5

Equally so, the applicants there is compliance of requirement stipulated under Rule 11 (7) (a), (b), (c) and (d) of the Rules. Perusal of affidavit in support of the motion reveals that: One: a decree and Judgment sought to be challenged is attached to affidavit as annexture AP-2 collectively. Two: Notice o fAppeal is annexture AP-3. Three: Notice o f intended execution , annexture AP-4. No doubts, the applicants have fully complied with all conditions enumerated under Rule 11 (7) of the Rules. The contentious issue is on the two conditions stipulated under Rule 11 (5) of the Rules that provides: " No order for stay o f execution shall be made under this rule unless the Court is satisfied that, (b) Substantia! loss may resuit to the party applying for stay o fexecution unless the order is made. (b) Security has been given by the applicant for the due performance o f such decree or order as may ultimately be binding". On the issue of substantial loss, the applicants have stated in the Notice of Motion and more so, in their sworn evidence at paragraph 9, that they will suffer irreparable loss as their appeal will be rendered nugatory. It is worth noting that decree sought to be executed is for 1s t

applicant to vacate from 3 acre farm and 2n d applicant to vacate the house he is currently leaving, together with compensation for loss income and general damages. Defemetlly is execution is allowed to proceed during the pendency of the appeal, the applicants are likely to suffer irreparable loss. In my opinion the applicants have satisfied the condition. As regard to furnishing security, for due performance of the decree, as may ultimately be binding upon them, the applicants at paragraph 10 have deposited that: "That, we are ready and willing to pay any amount o f money for due performance o f such Decree or order as may ultimately binding upon us". The above undertaking by the applicants is a declaration that they are ready to pay amount of money, which to me is a sufficient undertaking to move the Court to grant the order of stay. In totality the applicants have also complied with the issue of security. In the event and for the foregoing reasons, the execution of the decree of the trial tribunal is hereby stayed pending hearing of the appeal on the condition that within 30 days from today each applicant to deposit 7

to the Court 20 million each as clearly undertook to deposit any amount in their affidavit in support of the motion. Costs will be on the outcome of the appeal. DATED at DAR ES SALAAM this 19th day of September, 2024. Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 19th day of September, 2024 in the presence of Mr. J. J. Lundu, learned counsel for the applicants and Mr. Jeofrey Alex Mollel, learned counsel for the respondents, is hereby certified as a true copy of the original. , wm' 5 A. S. CKUGULU

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